Libel Law Under Scrutiny

W&m Professor Wants Revision

February 13, 1989|By MARK DI VINCENZO Staff Writer

WILLIAMSBURG — A group of legal experts, led by a College of William and Mary law professor, will discuss a "revolutionary and ambitious" libel law reform proposal today that critics say is too revolutionary and too ambitious to ever be implemented.

The proposal would bar a lawsuit if a retraction is published or the complainant is given a chance to reply. If editors or station managers refuse to do either, either side could demand a declaratory judgment trial, in which the court would only determine whether the alleged defamatory statement was true. No damages would be awarded, and the loser would pay all lawyers' fees.

If no declaratory judgment is requested, a lawsuit could be filed, but with no chance for punitive damages, which many legal experts say often do not reflect the level of harm done by a libelous report.

Although today's conference in Washington, D.C., marks the first time the proposed legislation has been discussed in a public forum, it has already triggered intense debate in law offices and newsrooms nationwide. Its authors describe it as dramatic and admit it will take skilled and fierce lobbying efforts to convince state legislators to introduce legislation.

"I think it has a chance because too much of it is just common sense," said W&M professor Rodney A. Smolla, director of Libel Reform Project of The Annenberg Washington Program, which drafted the proposal. "We want to streamline the system and get to the truth, and the simplest way to do this seems to be to give back what was hurt: not money, but reputations."

Its critics admit that parts of the proposal might be adopted. But while the proposal's main mission - to quickly determine the truth of a potentially libelous statement - sounds like it would be popular, editors and lawyers have already taken some forceful swipes at it, especially the declaratory judgment stage.

Media lawyers say that stage could last as long and be as costly as libel trials now and would make it easier for a libel plaintiff to win because it would essentially remove the protection granted in New York Times Co. v. Sullivan, a case in which the U.S. Supreme Court ruled that public officials must prove the media knew a report was false and published it anyway. They also fear that the proposal would trigger a flood of libel actions against the media.

Lawyers for libel plaintiffs oppose changes that would eliminate or reduce monetary judgements.

Others think some editors might allow accurate reporters "to hang out to dry" and print retractions in order to avoid a potential lawsuit. Many say complainants already have ample means to get to the truth and that everyone but the wealthy will have a difficult time finding skilled lawyers to represent them if most or all of the damages have been removed.

Smolla conceded, "Society might not be ready for it. We use money as a way to keep score. If someone wins a multi-million (dollar) libel lawsuit, we automatically think his victory was more complete."

However, in the face of this opposition, Smolla said he has gotten "five or six feelers" from states that might be interested, and he predicts some state will "experiment" with the proposal in five years or less. Few agree.

"I believe this is something that will be playing itself out at the academic level, not something that will be played out into reality," said Henry Kaufman, executive director of the Libel Defense Resource Center.

"Will there be many more plaintiffs?" said C. Thomas Dienes, general counsel of U.S. News & World Report. "We don't know. Will the media feel forced to print retractions when they don't want to? We don't know. There are too many unanswered questions.

"We know we're safe under the present law; we don't know what this would do," he said. "Why should we take the chance?"

Don Reuben, a leading 1st Amendment lawyer, said he thinks the provision for a declaratory judgment would be unconstitutional because it would threaten New York Times v. Sullivan. He couldn't think of anything he liked about it.

"I don't want anything that a legislature gives me," he said. "They could screw up a three-car funeral. I'd rather leave it up to the courts. The courts gave you New York Times (protections).

"It's just too radical."

One section of the proposal that has some support is the "neutral-reportage privilege," in which the media cannot be sued for an on-the-record statement as long as statements involve matters of public concern, the source is identified, and the statements are accurately quoted. In those instances, the source could be sued.

The proposal's authors say it has one clear loser; they call him "the dentist."

"He's a professional person whose business fails because a libelous story was published about him," Smolla said. "He'd like to sue for damages, but he can't because the newspaper or the radio station or the TV station has requested a declaratory judgment, so he can't collect damages. Even if he wins at that stage, he's hurt."